Scottish Court of Session Decisions

By antenuptial assignation dated 20th December 1887 Elizabeth Ann Fowler “considering that a marriage between John Wilken … and me is in contemplation, and that it has been agreed between him and me that before the solemnisation of the said marriage my estates hereafter specified should he settled as after mentioned: Therefore I, with consent of the said John Wilken, do hereby assign, dispone, convey, and make over to and in favour of my brothers, … as trustees … for the purposes after mentioned, … the whole estate, heritable and moveable, real and personal, of what kind or nature soever, now belonging or due and addebted, or that may belong or become due and addebted to me during the subsistence of the foresaid marriage; … and the said John Wilken hereby resigns and renounces his jus mariti and right of administration, and also his jus relicti and right of courtesy, and all action. right and pretension competent to him by law, in consequence of his said marriage, which he can claim to exercise over the means and estate above conveyed to the said trustees, and over the interest and yearly produce thereof, or upon the said estate and effects upon my death, and the same are hereby declared to be unaffectable by his debts or deeds, legal or voluntary, or by the diligence of his creditors.”

The purposes of the trust were—“ First, That the said trustees shall, during the subsistence of the said intended marriage, pay to me for my alimentary use the free interest or annual proceeds of the whole property hereby conveyed, declaring that my own receipts and discharges, without the consent of the said John Wilken, shall be sufficient exoneration for the said interest and annual profits.” Second, In the event of the dissolution of the marriage by the death of the wife leaving issue, for payment of the estate to the children or their issue at the period therein specified, this provision being declared to be in full satisfaction of legitim. “ Third, In the event of the dissolution of the said intended marriage by my death without issue, my said trustees shall hold, pay, and convey the aforesaid means and estate to my heirs and assignees whomsoever. Fourth, In the event of the dissolution of the said intended marriage by the death of the said John Wilken, the aforesaid means and estate hereby conveyed shall thereupon revert to me, and my said trustees shall denude themselves thereof accordingly, and the trust shall thereupon be terminated.”

Elizabeth Ann Fowler and John Wilken were married the day after the execution of the antenuptial assignation, and thereafter the trustees entered into possession of the trust funds and paid over the income to Mrs Wilken in accordance with the provisions of the deed. The trust funds amounted to about £3955 and the income to £133.

In 1904, Mrs Wilken being 67 years of age and her husband over that age, and no children having been born of the marriage, Mr and Mrs Wilken desired to revoke the antenuptial assignation, and called on the trustees to hand over to them the capital of the trust estate on the grounds that they intended to reside permanently in America and wished to invest the trust funds to better advantage. The trustees were doubtful as to whether the spouses were entitled to revoke the deed, and declined to hand over the estate without judicial sanction.

In these circumstances a special case was presented to the Court by (1) the trustees, and (2) Mr and Mrs Wilken.

The special case stated, inter alia—“Parties are agreed that there is now no likelihood of there being any children of the marriage… . The parties of the first part contend that the trust assignation is irrevocable, and that during the subsistence of the marriage they are not entitled, nor in safety, to denude themselves of the trust in favour of the second parties, notwithstanding that no issue have as yet been, or are likely to be, born of the marriage, and that their duty is to conserve the trust funds and administer the same in conformity with the provisions of the said antenuptial assignation, which was specially constituted for the protection of Mrs Wilken. The parties of the second part contend that the trust assignation is not of a contractual character, and further, as there cannot now be any children of the marriage, that they are the sole parties who have any interest in the trust funds, and that they are therefore entitled to revoke the trust and to have the trust estate paid over to them. They offer, if necessary, to safeguard the first parties by taking out a policy of insurance

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to the satisfaction of the first parties, to cover the risk of possible issue of the marriage.”

The questions of law were—“(1) Is the said trust assignation revocable by the parties of the second part? (2) Are the parties of the first part entitled, on the application of the second parties, now to denude themselves of the trust and pay over the capital of the trust funds to the parties of the second part in exchange for a discharge by the latter in their favour?”

Argued for the second parties—The trust deed was revocable. If there had been a proper contract of marriage, they would have had no case. But this was not a contract of marriage. The present case was ruled by the decision in Watt v. Watson, January 16, 1897, 24 R. 330, 34 S.L.R. 267. No doubt in that case the husband was not a party to the deed. But the mere fact that the husband was a party did not prevent revocation— Ramsay v. Ramsay's Trustees, November 24, 1871, 10 Macph. 120, 9 S.L.R. 106. The only other distinction between the present case and Watt was that in the present the liferent to the wife was declared to be alimentary. But in Watt, although the word “alimentary” was not used, the liferent was alimentary, the income being declared not to be affectable by the deeds or debts of the wife or by the diligence of her creditors—Bell's Commentaries, 7th edition, i, 124; Irvine v. M'Laren, January 24, 1829, 7 S. 317

Counsel for the first parties was not called on.